BC Injury Law and ICBC Claims Blog

This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘Jury Trials’ Category

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, addressing whether a unique causation issue in a personal injury claim was too complex for a jury.

In today’s case (Jackson v. Yusishen) the Plaintiff was rear-ended by the defendant’s truck in 2009. The Plaintiff sustained some injuries and sued for damages. Some 6 months following the crash the plaintiff “coughed and the pain in his chest and back suddenly increased in intensity“. He was ultimately diagnosed with “one or two fractured ribs…hernias of the intercostal area and of the diaphragm“. He had multiple surgeries to correct these complications that had not been successful. The biggest issue for trial was for the jury to decide whether the ribs were compromised in the collision and whether the collision caused or contributed to the ultimate complications the Plaintiff was diagnosed with.

The Defendant elected trial by Jury. The Plaintiff argued the matter was too complex for a jury to decide. Mr. Justice Rogers disagreed and held that a jury could address this issue. In upholding the jury election the Court provided the following reasons:

[23] It is possible that the jury may find that the accident weakened the plaintiff’s ribs such that the later coughing episode caused them to fracture. In that event, the standard language of an Athey instruction will suffice to guide the jury’s deliberations. Again, juries are regularly instructed on similar Athey issues – this case would not present any greater complication on that issue than any other.

[24] Once the jury has determined whether the accident caused rib fractures or a weakening of the ribs that later turned into fractures, the rest of the jury’s duties will be relatively straight forward. If their answer to that question is yes, then they will have to assess the degree to which the injuries have impaired the plaintiff’s function and award damages accordingly. For that task, they will have the assistance of expert reports of the type that are conventionally adduced in personal injury cases. Those reports include a functional capacity evaluation, a vocational assessment, a cost of future care report, and an economist’s assessment of the present value of various loss scenarios. Again, in serious personal injury cases, juries are routinely asked to consider such reports. There is nothing about the content of the reports in this case that suggest that a jury would not be able to conveniently consider their content and render a verdict accordingly.

[25] If the jury’s answer to the causation question is no, then their task will become very nearly trivial.

[26] Although there are a number of expert reports that will go into evidence in this case, the reality is that the jury will likely not be required to scour each and every word in each and every report. For example, the plaintiff’s economist’s reports may be useful to the jury should it wish to award future losses to the plaintiff, but it is unlikely that the jury will need to go beyond picking what appears to it to be the appropriate multiplier for a given loss and a given set of positive and negative contingencies.

[27] In my opinion, the jury’s task of hearing, examining, and considering the evidence in this case will not exceed the bounds of convenience. The jury will be asked to conduct a scientific inquiry into what the radiographs could and did show of the plaintiff’s rib structure, but that will be a relatively narrow and focused inquiry. The jury will be guided by the opinions of qualified medical practitioners and by counsel’s submissions. It is not every contest of medical opinion that will disqualify a jury from trying a personal injury claim, and in my view, the scientific inquiry that the jury will make on this issue will be within its capacity.

[28] Once the jury gets past the issue of causation, this case will become a relatively straightforward assessment of personal injury damages. The evidence on quantum issues is entirely conventional and is of the sort that juries are often asked to consider and assess. The jury may have to make some difficult decisions, but the path to those decisions will not, in my view, be so intricate or complex as to overwhelm the jury’s capacity to arrive at a just and proper judgment.

[29] For these reasons, I have concluded that the plaintiff’s application to strike the jury notice must be dismissed.

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, discharging a jury prior to the conclusion of a personal injury trial.

In this week’s case (Vander Maeden v. Condon) the Defendant objected to a series of “misstatements and transgressions” following the Plaintiff’s final submissions to the Jury. The Plaintiff argued that there was no need to discharge the jury and proper instructions “could cure any defects in the trial“. Mr. Justice Gaul held that while some of the misstatements could have been dealt with by proper instructions, their “cumulative effect” was beyond remedy. In discharging the jury the Court provided the following reasons:

[13] In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct…

[35] Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.

[36] With great respect for each member of the jury, in my opinion their ability to fairly and impartially perform their role as the triers of fact was irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.

[37] In my view counsel for the defendants is correct when he submits the only means of salvaging the trial is to discharge the jury and have the proceeding continue as a judge alone trial. In my view a just, effective and efficient resolution to the situation is for the jury to be discharged, for Mr. Vander Maeden’s counsel to make additional submissions on the issues at trial if he believes they are necessary and then for counsel for the defendants to make his final submissions.

Last year a Vancouver Jury awarded professional boxer Jegbefumere ‘Bone’ Albert just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career. He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record. The collision caused a chronic hand injury which flared with training/fighting. The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.

ICBC appealed arguing numerous errors at the trial level. In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –

[50] This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.

[51] Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.

[52] I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.

[53] I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.

I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.

Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process. Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application. The Court provided the following feedback:

23] By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.

[24] I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.

In the recent case (Demello v. Chaput) the Plaintiff was involved in a series of collisions. During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made:

His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.

Madam Justice Maisonville found these comments crossed the line and discharged the jury. In doing so the Court provided the following reasons:

[30] I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.

[31] I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.

[32] The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.

[33] In all of the circumstances, I order that the jury in this matter be discharged.

[34] I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.

This week a futher judgement was released addressing this topic finding a case with 475 pages of expert evidence was too complex for a jury.

In this week’s case (Moll v. Parmar) both the Plaintiff and Defendant filed a jury notice. At the trial management conference the Defendant indicated that a jury trial was still anticipated. As trial neared, however, the Defendant changed their view and brought an application to strike the Plaintiff’s jury notice. Mr. Justice Abrioux found that the case was too complex for a jury and in so doing provided the following reasons:

[43] What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.

[44] I emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.

[45] In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex. The reports of the neuroradiologist attest to this…

[51] I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.

Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial. In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.

In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision. Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”

The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions. In the course of the lawsuit a total of 32 expert reports were obtained by the litigants. The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“. Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:

[27] Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.

Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry striking a jury notice in a complex personal injury claim.

In the recent case (Campbell v. McDougall) the Plaintiff was involved in two collisions, the first in 2006, the second in 2008. The trials were set to be heard together with ICBC seeking trial by jury. The Plaintiff brought an application to strike the jury notices arguing the claims were too complex for a jury. Mr. Justice Gaul agreed and provided the following reasons:

[14] The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.

[15] In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records…

[32] In my opinion, the number of expert reports involved in this litigation, the varying opinions contained in those reports, the medical terms and principles referenced in the reports, and the plaintiff’s unique educational and professional background combine to make this case a significantly complex one…

[37] I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.

[38] I have reviewed and considered the authorities Ms. Stevens has submitted where juries have addressed complex issues in personal injury cases, as well as other types of claims, over the course of long trials. Having done so and having regard to the principles articulated in Nichols, it is my considered opinion that the examination and investigation in the present case cannot be made conveniently with a jury. Moreover, given the intricate and complex nature of the issues in dispute, in my view this case is not one that is suitable for trial with a jury.

[39] The plaintiff’s applications are granted. The jury notices in both cases are struck out. The joint trial of these matters will therefore take place before a Supreme Court justice sitting without a jury.

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.

In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision. The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant. As trial neared the Defendant elected not to rely on the Jury Notice. The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice. Mr. Justice Abrioux held that this was not allowed and dismissed the application. The court did, however, grant the Plaintiff leave to file a jury notice of their own.

In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:

[1] The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…

[19] The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.

[20] I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.

[21] In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).

[22] Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.

In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision. During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids. In finding such aids were appropriate Mr. Justice Voith provided the following reasons:

[19]Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

[32]In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

[33]The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.

[34]Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:

The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.

[35]In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

I am advised this case is currently under appeal for unrelated reasons. If the BC Court of Appeal addresses this topic I will provide an updated post.

This blog is authored by personal injury and ICBC Claims lawyer Erik
Magraken. Use of the site and sending or receiving information through it
does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes.
It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client
(attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.